The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have rescinded the regulatory definition of "harm" in the Endangered Species Act, returning to the statute's original broader terminology of "take," according to a recent analysis by the Washington Policy Center. The agencies cited the Loper Bright decision in making the change, which Interior Secretary Doug Burgum characterized as restoring "common sense" and providing "much-needed certainty for landowners." The shift eliminates regulatory language added in 1975 and returns enforcement to the statute Congress originally passed.
The rescinded definition had characterized "harm" as "an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation," the report notes. The ESA itself defines "taking" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Western states face outsized impact from ESA changes because roughly 47 percent of all land in the 11 contiguous Western states and Alaska is federally owned, with Nevada at 80 percent federal ownership and Washington state at 28.6 percent. Most federal land is controlled by four agencies: the Bureau of Land Management, the U.S. Forest Service, the National Park Service, and the U.S. Fish and Wildlife Service.
Critics of the rule change contend that removing "harm" from the ESA eliminates protections for critical habitat areas, the report states. When a species receives endangered status, federal agencies designate federal and private land where those species live as "critical habitat," and developers seeking permits on such land must explain how they'll limit or reduce harm to those areas. However, the report finds that even without "harm" specifically defined in the ESA, the law still protects critical habitat through existing statutory language. The ESA requires all federal agencies to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat which is determined by the Secretary . . . to be critical." The law also permits the federal government to purchase private property "to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species" and prohibits "taking" of listed animals by private citizens.
The Washington Policy Center's analysis suggests the pre-existing ESA structure already provides sufficient protections for endangered and threatened wildlife and their habitats, rendering the 1975 "harm" definition redundant to the original statute. The shift toward land use discussions may provide relief for Western ranchers who've been engaged in prolonged battles over wolves, grizzly reintroductions, and sage grouse for years, the report notes. Most previous ESA updates focused on treatment of threatened and endangered species rather than land use. Yet if the reception from opponents signals what's ahead, more legal battles are coming.